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[Senate Report 113-304]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 620
113th Congress  }                                         {      REPORT
                                 SENATE 
 2d Session     }                                         {     113-304     
 ______________________________________________________________________
 

                 VESSEL INCIDENTAL DISCHARGE ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2094

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

               December 10, 2014.--Ordered to be printed
               
                            ______

                         U.S. GOVERNMENT PRINTING OFFICE 

49-010                         WASHINGTON : 2014            
               
               
               
               
               
               
               
               
               
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred thirteenth congress
                             second session

             JOHN D. ROCKEFELLER IV, West Virginia, Chairman
 BARBARA BOXER, California            JOHN THUNE, South Dakota
 BILL NELSON, Florida                 ROGER F. WICKER, Mississippi
 MARIA CANTWELL, Washington           ROY BLUNT, Missouri
 MARK PRYOR, Arkansas                 MARCO RUBIO, Florida
 CLAIRE McCASKILL, Missouri           KELLY AYOTTE, New Hampshire
 AMY KLOBUCHAR , Minnesota            DEAN HELLER, Nevada
 MARK BEGICH, Alaska                  DANIEL COATS, Indiana
 RICHARD BLUMENTHAL, Connecticut      TIM SCOTT, South Carolina
 BRIAN SCHATZ, Hawaii                 TED CRUZ, Texas
 ED MARKEY, Massachusetts             DEB FISCHER, Nebraska
 CORY BOOKER, New Jersey              RON JOHNSON, Wisconsin
 JOHN WALSH, Montana
                     Ellen Doneski, Staff Director
                     John Williams, General Counsel
              David Schwietert, Republican Staff Director
              Nick Rossi, Republican Deputy Staff Director
               Rebecca Seidel, Republican General Counsel
               
               
               
               
               
               
               
                                                       Calendar No. 620
113th Congress    }                                       {      Report
                                 SENATE
 2d Session       }                                       {     113-304

======================================================================

 
                    VESSEL INCIDENTAL DISCHARGE ACT

                                _______
                                

               December 10, 2014.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2094]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2094) to provide for the 
establishment of nationally uniform and environmentally sound 
standards governing discharges incidental to the normal 
operation of a vessel, having considered the same, reports 
favorably thereon with an amendment (in the nature of a 
substitute) and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of S. 2094, the Vessel Incidental Discharge 
Act, is to provide for the establishment of nationally uniform 
and environmentally sound standards for the regulation of 
ballast water discharges and other discharges that are 
incidental to the normal operation of vessels.

                          Background and Needs

    Ballast water discharged from vessels has been, and 
continues to be, of serious concern as one of several vectors 
for the introduction into ecosystems of aquatic invasive 
species. One of the best known examples of introduction of an 
aquatic invasive species via ballast water is that of the zebra 
mussel (Dreissena polymorpha). The zebra mussel is indigenous 
to freshwater lakes and rivers in Eastern Europe and Western 
Asia, but was discovered in North America in Lake St. Clair, 
which connects Lake Huron and Lake Erie, in 1988. It is 
generally accepted by the scientific community that the species 
arrived there in ballast water discharged by vessels coming 
from European ports. Since arriving in North America, the zebra 
mussel has spread throughout and beyond the Great Lakes. The 
introduction of this nonindigenous filter-feeder has 
drastically altered ecosystems in the Great Lakes and 
elsewhere.
    Although the problem of, and solution to, introduction of 
invasive species through ballast water are clear, the laws and 
regulations that govern ballast water management and the 
management of other discharges incidental to the normal 
operation of vessels could hardly be more confusing. Currently 
these incidental discharges are regulated by a patchwork of 
Federal and State laws and regulations. In 1973, when the 
Environmental Protection Agency (EPA) first implemented the 
National Pollutant Discharge Elimination System (NPDES) 
pursuant to section 402 of the Clean Water Act, it excluded 
discharges incidental to the normal operation of a vessel from 
the permitting requirement for the discharge of pollutants by 
point sources under NPDES.\1\ At the time, the EPA reasoned 
that the exclusion was warranted because ``this type of 
discharge generally causes little pollution and exclusion of 
vessel wastes from the permit requirements will reduce 
administrative costs drastically.''\2\ This exemption remained 
in place until 2005, when the 9th Circuit Court of Appeals 
upheld a Federal district court ruling that the EPA's 32-year-
old regulatory exclusion of vessel discharges from NPDES was 
ultra vires to the Clean Water Act.\3\
---------------------------------------------------------------------------
    \1\National Pollutant Discharge Elimination System, 38 Fed. Reg. 
13528 (May 22, 1973) (to be codified at 40 C.F.R. pt. 125).
    \2\ Id.
    \3\Northwest Envtl. Advocates et al. v. U.S. Envtl. Prot. Agency, 
537 F.3d 1006 (9th Cir. 2008).
---------------------------------------------------------------------------
    Separately, during the three decades in which the NPDES 
vessel exclusion was in place, Congress responded to growing 
concerns about zebra mussels and other aquatic invasive species 
in the United States by enacting the Nonindigenous Aquatic 
Nuisance Prevention and Control Act of 1990\4\ (NANPCA), and 
amendments thereto by the National Invasive Species Act\5\ 
(NISA) in 1996. NANPCA/NISA requires the Coast Guard, in 
coordination with the EPA and other relevant Federal agencies, 
to establish and administer a ballast water management program 
to prevent introduction and dispersal of nonindigenous species 
into the waters of the United States.
---------------------------------------------------------------------------
    \4\Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, Pub. L. No. 101--646, 104 Stat. 4761 (1990).
    \5\National Invasive Species Act, Pub. L. No. 104--332, 110 Stat. 
4073 (1996).
---------------------------------------------------------------------------
    Also prior to the overturn of the EPA's regulatory 
exclusion of vessels from NPDES, the Coast Guard in 2004, with 
the State Department, led the U.S. Delegation to the 
International Maritime Organization (IMO) Diplomatic Conference 
on Ballast Water Management for Ships, at which the 
International Convention for the Control and Management of 
Ships' Ballast Water and Sediments\6\ (Convention) was adopted. 
The Convention includes provisions for the experimental testing 
of prototype ballast water treatment systems on operating 
vessels that is largely based on the Coast Guard's own 
Shipboard Technology Evaluation Program, implemented in January 
2004.\7\ It also contains a provision advanced by the U.S. 
Delegation for the sampling of ballast water discharged by 
ships as a port state control activity, in order to help port 
states ensure foreign-flagged vessels' compliance with the 
Convention's treatment and other management requirements.\8\
---------------------------------------------------------------------------
    \6\International Convention for the Control and Management of 
Ships' Ballast Water and Sediments, 2004, available at http://
www.uscg.mil/hq/cg5/cg522/cg5224/docs/BWM-Treaty.pdf.
    \7\ Id. Section D, Regulation D-4.
    \8\ Id. Article 9.
---------------------------------------------------------------------------
    Most importantly, the Convention includes a ballast water 
treatment standard based on the number of living organisms 
contained in discharged ballast water that is the most 
stringent standard scientifically proven to be achievable and 
detectable today. Specifically, Regulation D-2 requires that 
ballast water discharge contain: (1) less than 10 viable 
organisms per cubic meter of ballast water that are greater 
than or equal to 50 micrometers in minimum dimension; and (2) 
less than 10 viable organisms per milliliter of ballast water 
that are less than 50 micrometers in minimum dimension and 
greater than or equal to 10 micrometers in minimum 
dimension.\9\ Regulation D-2 further requires that ballast 
water discharge contain only minimal concentrations of certain 
human health indicator microbes, as follows: (1) less than one 
colony-forming unit (CFU) of toxicogenic Vibrio cholerae 
(serotypes O1 and O139) per 100 milliliters of ballast water, 
or less than 1 CFU per one gram (wet weight) of zooplankton 
samples; (2) less than 250 CFUs of Escherichia coli per 100 
milliliters of ballast water; and (3) less than 100 CFUs of 
intestinal Enterococci per 100 milliliters of ballast 
water.\10\
---------------------------------------------------------------------------
    \9\ Id. Section D, Regulation D-2.
    \10\ Id.
---------------------------------------------------------------------------
    Today, as a result of these independent developments, both 
the Coast Guard and EPA are regulating ballast water under 
separate, inconsistent, and sometimes directly conflicting sets 
of requirements--the Coast Guard under NANPCA/NISA and the EPA 
under the Clean Water Act and NPDES. While both the Coast Guard 
and the EPA have adopted the Regulation D-2 standard as their 
treatment standard for ballast water, there is considerable 
confusion between Federal regulators and among vessel owner/
operators over how to administer, and properly comply with, the 
Coast Guard and EPA's separate requirements.
    As an example, both the Coast Guard and EPA require a 
ballast water management system (BWMS) aboard a vessel covered 
by their regulations. On the one hand, the Coast Guard's 
regulations generally require that a BWMS be type-approved by 
the Coast Guard.\11\ In the case of a manufacturer whose BWMS 
has been approved by a foreign regulatory authority pursuant to 
Convention standards, that manufacturer may request a Coast 
Guard determination that its BWMS qualifies as an Alternate 
Management System (AMS). On the other hand, the EPA's Vessel 
General Permit (VGP) requires only that a BWMS ``has been shown 
to be effective by testing conducted by an independent third 
party laboratory, test facility or test organization.''\12\ 
Although a BWMS approved by the Coast Guard is deemed by the 
VGP to comply with its effectiveness requirement, a BWMS may 
also be tested and found effective under the VGP by another 
``laboratory, test facility, or test organization,'' even 
though it hasn't been approved by the Coast Guard. Thus a BWMS 
could end up being installed on a vessel in compliance with the 
VGP, even though it does not (and may never) comply with Coast 
Guard regulations.
---------------------------------------------------------------------------
    \11\33 C.F.R. Sec.  151.2025(a)(1) (2013).
    \12\Vessel General Permit for Discharges Incidental to the Normal 
Operation of Vessels (December 19, 2013) (VGP), Section 2.2.3.5.1.1, 
available at http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
---------------------------------------------------------------------------
    Furthermore, no BWMS has yet received type-approval from 
the Coast Guard because the type-approval process has taken 
longer than expected. Coast Guard regulations allow for the 
extension of compliance deadlines to accommodate delays in 
type-approval, but the EPA's VGP is vague as to how it will or 
will not apply when Coast Guard has granted a compliance date 
extension.\13\ The VGP took effect for most commercial vessels 
on December 19, 2013, while the first BWMS is not expected to 
be type-approved by the Coast Guard until 2015 at the earliest. 
Are vessel owner/operators expected to install VGP-compliant 
BWMS that may or may not later be approved by the Coast Guard? 
The EPA's only guidance in this regard is that, in cases where 
(1) the vessel has received a compliance date extension from 
the Coast Guard; (2) the vessel is not in compliance with the 
ballast water numeric discharge limit under the VGP; and (3) 
the vessel is otherwise in compliance with the VGP, the EPA 
will, subject to additional case-by-case considerations, 
``consider such violations of the VGP ballast water numeric 
discharge limit a low enforcement priority.''\14\
---------------------------------------------------------------------------
    \13\ See id. Section 1.9.1 (stating only that ``Regarding 
implementation dates of the limits found in Part 2.2.3.5 of the VGP, 
EPA advises that where the U.S. Coast Guard has granted or denied an 
extension request pursuant to 33 CFR 151.2036, that information will be 
considered by EPA, but is not binding on EPA.'').
    \14\Memorandum from Cynthia Giles, EPA Assistant Administrator, to 
Regional Vessel General Permit Enforcement and Program Directors (Dec. 
27, 2013), available at http://www2.epa.gov/sites/production/files/
2013-12/documents/vesselgeneralpermit-erp.pdf.
---------------------------------------------------------------------------
    Another example of the conflict and confusion between the 
two regimes is the VGP requirement of ballast water exchange 
combined with the use of a BWMS for certain vessels that enter 
the Great Lakes after operating outside the U.S. Exclusive 
Economic Zone.\15\ This requirement stands in contrast to Coast 
Guard and IMO regulations, which do not require this 
combination of management methods. These inconsistent 
requirements are certain to cause confusion among vessel owner/
operators, and particularly among owner/operators of foreign-
flagged vessels. Some foreign vessel owner/operators have even 
suggested that this and other Clean Water Act requirements 
seem, to the extent they are inconsistent with IMO 
requirements, like thinly veiled non-tariff barriers to trade.
---------------------------------------------------------------------------
    \15\VGP section 2.2.3.7.
---------------------------------------------------------------------------
    Challenges abound not only with respect to proper 
compliance with, but also proper enforcement of, these 
conflicting requirements. Most notable among them is the fact 
that the Coast Guard is both required to enforce its own 
ballast water management and other vessel operational 
requirements, and also relied upon to enforce the EPA's 
conflicting vessel operational requirements under the VGP.\16\
---------------------------------------------------------------------------
    \16\Memorandum of Understanding between the U.S. Environmental 
Protection Agency, Office of Enforcement and Compliance Assurance, and 
the U.S. Coast Guard, Office of Marine Safety, Security and 
Stewardship, for Collaboration on Compliance Assistance, Compliance 
Monitoring, and Enforcement of Vessel General Permit Requirements on 
Vessels (Feb. 11, 2011), http://www.uscg.mil/hq/cgcvc/cvc1/general/vgp/
CG_EPA_MOU.pdf.
---------------------------------------------------------------------------
    On top of this duplicative, inconsistent, and confusing 
Federal regime, subjecting vessels to NPDES has also opened the 
door for States to establish their own varying standards and 
requirements for vessel incidental discharges. The States of 
California, Michigan, Minnesota, Ohio, Oregon, and Washington 
are among those that already have promulgated their own ballast 
water management requirements that also apply to commercial 
vessels navigating in State waters.
    The State of California has enacted a ballast water 
treatment standard at the recommendation of the California 
State Lands Commission (CSLC) that requires less than 0.01 
living organisms measuring between 10 and 50 micrometers per 
milliliter of ballast water discharged (1000 times the IMO D-2 
standard) and requires zero detectable living organisms greater 
than 50 micrometers per milliliter of ballast water 
discharged.\17\ However, the State has continued to delay 
implementation of its requirement that vessel owner/operators 
install BWMS that meet these standards, because no BWMS are 
available that meet California's treatment standards. In the 
CSLC staff's words:
---------------------------------------------------------------------------
    \17\Cal. Pub. Res. Code Sec.  71205.3 (West 2014).
---------------------------------------------------------------------------
        More specifically, shipboard ballast water treatment 
        systems cannot be considered available to meet the 
        California performance standards because: 1) no ballast 
        water treatment system has demonstrated efficacy for 
        all of the California performance standards based on 
        the best available data; 2) there are no suitable 
        methods/technology to analyze ballast water samples to 
        determine treatment system efficacy for some of the 
        California performance standards; and 3) a lack of 
        sampling/compliance protocols precludes the ability of 
        the Commission to make a conclusive determination about 
        the availability of shipboard ballast water treatment 
        systems to meet the California performance 
        standards.\18\
---------------------------------------------------------------------------
    \18\California State Lands Commission, 2014 Assessment of the 
Efficacy, Availability, and Environmental Impacts of Ballast Water 
Treatment Technologies for Use in California Waters 32 (Aug. 2014), 
available at http://www.slc.ca.gov/spec_pub/mfd/ballast_water/
Documents/Reports/2014CSLC_BWTechReport_Final-2.pdf.
---------------------------------------------------------------------------
    The States of Oregon and Washington, meanwhile, have 
adopted a number of reporting, record keeping, and inspection 
requirements, as well as certain ballast water open sea 
exchange measures, but neither State has yet imposed a 
treatment standard under State law, as California has done. The 
State of Washington's Ballast Water Management statute requires 
that the Washington Department of Fish and Wildlife:
        shall adopt by rule standards for the discharge of 
        ballast water into the waters of the state and their 
        implementation timelines. The standards are intended to 
        ensure that the discharge of ballast water poses 
        minimal risk of introducing nonindigenous species. In 
        developing these standards, the department shall 
        consider the extent to which the requirement is 
        technologically and practically feasible. Where 
        practical and appropriate, the standards must be 
        compatible with standards set by the United States 
        Coast Guard, the Federal Clean Water Act, or the 
        International Maritime Organization.\19\
---------------------------------------------------------------------------
    \19\Wash. Rev. Code Ann. Sec.  77.120.030 (West 2014) (citation 
omitted).
---------------------------------------------------------------------------
    The State of Oregon's ballast water management statute 
contains similar language regarding technological and practical 
feasibility.\20\ Oregon's statute also includes a requirement 
that its ballast water standards and procedures be, ``To the 
extent practicable . . . consistent with relevant rules adopted 
by the States of California and Washington,''\21\ but it is 
unclear how Oregon, or Washington for that matter, can 
reconcile its practicability-based approach to ballast water 
treatment with that of California, which has taken a very 
different approach.
---------------------------------------------------------------------------
    \20\ See Or. Rev. Stat. Ann. Sec.  783.635 (West 2014) (providing, 
in part, that ``[t]he Environmental Quality Commission may adopt by 
rule standards and procedures that the commission considers necessary 
to carry out the provisions of ORS 783.625 to 783.640. The standards 
and procedures must minimize the risk of introducing aquatic invasive 
species into the waters of this state and must be based on the 
availability of treatment technology. Rules adopted under this 
subsection include, but are not limited to: Standards for the discharge 
of ballast water into the waters of this state and appropriate 
timelines for the implementation of the standards. In adopting the 
standards, the commission shall consider the extent to which treatment 
technology is feasible, practicable and commercially available, or 
expected to be available, by the proposed implementation timelines.'' 
(emphasis added)).
    \21\ Id.
---------------------------------------------------------------------------
    In all, 25 States have certified the VGP subject to 
additional, individual State requirements. The potential 
compliance challenges posed by this situation are staggering. 
As an example, a commercial vessel owner/operator transiting 
the full length of the Mississippi River is required to comply 
not only with applicable Coast Guard requirements under NANPCA/
NISA and the EPA's VGP requirements, but also with varying 
additional VGP permit requirements imposed by the States of 
Minnesota, Wisconsin, Iowa, Illinois, Missouri, and Arkansas.
    This complicated, inefficient, and confusing patchwork of 
Federal and State requirements will only continue to grow, 
confusing vessel owner/operators seeking in good faith to 
comply, confounding law enforcement authorities, unnecessarily 
impeding maritime commerce, and, most importantly, diminishing 
the overall effectiveness of U.S. efforts to prevent the 
introduction of aquatic invasive species. Strong, uniform 
national standards are necessary to effectively defend against 
invasive species brought to the U.S. in ballast water 
discharges.
    The Vessel Incidental Discharge Act would require the 
Secretary of the department in which the Coast Guard is 
operating, in consultation with the Administrator of the EPA, 
to establish and implement enforceable, uniform, national 
standards and requirements for the regulation of ballast water 
discharges and other discharges incidental to the normal 
operation of vessels. The new standards and requirements would 
be required to be based upon the best available technology 
economically achievable, and would generally supersede the 
current jumble of Federal and State incidental discharge 
requirements. Enforcement responsibilities with respect to 
these uniform standards and requirements would be vested in the 
Secretary and the States.

                         Summary of Provisions

    S. 2094 would require the Secretary of the department in 
which the Coast Guard is operating, in consultation with the 
Administrator of the EPA, to establish and implement uniform 
national standards for the regulation of ballast water 
discharges and other discharges incidental to the normal 
operation of vessels. The new standards would be based upon the 
best available technology economically achievable, and would 
generally supersede the current jumble of Federal and State 
incidental discharge requirements. The initial ballast water 
treatment standard under S. 2094 would be the IMO D-2 
Standard--the most stringent treatment standard scientifically 
proven to be achievable and detectable today. In 2022, a 
revised standard would take effect that is 100 times more 
stringent than the initial standard, unless the Secretary and 
Administrator determine the revised standard is not yet 
feasible, in which case the most stringent standard that is 
feasible would be adopted. If a standard more stringent than 
100 times the initial standard is determined to be feasible, 
that standard would become the revised standard. Thereafter, 
decennial feasibility reviews would be required to determine 
whether further revisions of the ballast water standard would 
result in a scientifically demonstrable and substantial 
reduction in the risk of the introduction of aquatic nuisance 
species. These decennial reviews could also look at other 
vessel discharges for which standards are established under the 
Act, to determine if revising those standards would 
substantially reduce their impacts on navigable waters. 
Enforcement responsibilities would be vested in the Secretary. 
States also would be authorized to enforce the standards and 
requirements established under the Act.

                          Legislative History

    S. 2094, the Vessel Incidental Discharge Act, was 
introduced by Senators Begich, Rubio, Ayotte, Blunt, Boozman, 
Casey, Cochran, Collins, Hirono, Landrieu, McCaskill, Markey, 
Murkowski, Nelson, Pryor, Rockefeller, Schatz, Thune, Toomey, 
Vitter, Warren, and Wicker on March 6, 2014, and referred to 
the Committee on Commerce, Science, and Transportation. On July 
23, 2014, the Committee met in open Executive Session and, by a 
voice vote, ordered S. 2094 reported with three technical 
amendments offered by Senator Wicker.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 2094--Vessel Incidental Discharge Act

    S. 2094 would amend the environmental standards for some 
water that is discharged from ships and permanently exempt 
certain smaller vessels from those standards. Under current 
law, the United States Coast Guard (USCG) and the Environmental 
Protection Agency (EPA) set and enforce those standards.
    S. 2094 would change the procedures for how the United 
States regulates water discharged from certain vessels. The 
legislation would increase the administrative responsibilities 
of USCG to implement certain laws that govern water discharged 
from ships and require that USCG complete those 
responsibilities in consultation with EPA. Under current law, 
most of those responsibilities are administered by EPA under 
the Clean Water Act.
    Under the bill, EPA would no longer issue water discharge 
permits to vessels. However, based on information from EPA, CBO 
estimates that any cost savings to the agency would be 
negligible because it would still have other responsibilities 
under the Clean Water Act. Based on information from the USCG, 
CBO estimates that the Coast Guard would gradually add 15 staff 
members over the next couple of years at a cost of $5 million 
over the 2015-2019 period, assuming appropriation of the 
necessary amounts. Those additional staff would conduct 
enforcement actions and review any proposals from states for 
more stringent water discharge standards.
    Enacting S. 2094 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 2094 contains intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA). The bill would preempt 
state and local laws relating to water discharges from vessels 
by establishing a national uniform standard and set of best 
management practices. CBO estimates that this preemption would 
not impose costs on state and local governments. Although it 
would limit the applications of state and local regulations, 
the bill would impose no duty on state or local governments 
that would result in additional spending or a loss of revenues.
    The bill also would impose a private-sector mandate, as 
defined in UMRA, on manufacturers and importers of certain 
water treatment technology. Those entities would be prohibited 
from selling such technology unless it has been certified by 
the USCG or certified by a foreign entity and deemed to meet 
equivalent levels of performance and safety. The cost of the 
mandate would be the cost of obtaining certification and any 
net loss of income from forgone sales. Under current law, 
manufacturers of water treatment technology already need to 
obtain USCG certification because owners of vessels that use 
such technology are required to install USCG-certified 
technology by a certain date. If the certification process 
under the bill is very similar to the certification process 
conducted under current law, the incremental cost of complying 
with the mandate would be small. However, the incremental cost 
of the mandate could be higher. On balance, CBO expects the 
cost of the private-sector mandate would probably be less than 
the annual threshold established in UMRA ($152 million in 2014, 
adjusted annually for inflation).
    The CBO staff contacts for this estimate are Sarah Puro 
(for federal costs), Jon Sperl (for the state and local 
impact), and Amy Petz (for the private-sector impact). The 
estimate was approved by Theresa Gullo, Deputy Assistant for 
Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    S. 2094 as reported does not create any new programs or 
impose any new regulatory requirements, and therefore will not 
subject any individuals or businesses to new regulations. It 
would streamline regulatory compliance for the owners and 
operators of approximately 70,000 vessels. It would permanently 
exempt approximately 120,000 vessels from incidental vessel 
discharge rules and thus reduce the regulatory burden on the 
owners and operators of those vessels.

                            economic impact

    Enactment of this legislation is not expected to have any 
significant adverse impacts on the Nation's economy.

                                privacy

    The bill will not impact the personal privacy of 
individuals.

                               paperwork

    By replacing myriad Federal and State vessel incidental 
discharge requirements with a single set of national 
requirements, S. 2094 will likely reduce paperwork requirements 
for individuals and businesses.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis

Section 1. Short title; table of contents.

    This section would provide that this Act may be cited as 
the ``Vessel Incidental Discharge Act''.

Section 2. Findings; purpose.

    This section would set forth findings of Congress and state 
that the purpose of this Act is to provide for the 
establishment of nationally uniform and environmentally sound 
standards for discharges incidental to the normal operation of 
a vessel in the navigable waters of the United States.

Section 3. Definitions.

    This section would define the terms ``Administrator,'' 
``aquatic nuisance species,'' ``ballast water,'' ``ballast 
water performance standard,'' ``ballast water treatment 
technology'' or ``treatment technology,'' ``biocide,'' 
``discharge incidental to the normal operation of a vessel,'' 
``geographically limited area,'' ``manufacturer,'' 
``Secretary,'' and ``vessel.''

Section 4. Regulation and enforcement.

    This section would require the Secretary of the department 
in which the Coast Guard is operating, in consultation with the 
Administrator of the EPA, to establish and implement 
enforceable uniform national standards for the regulation of 
discharges incidental to the normal operation of a vessel. 
These standards would be required to be based upon the best 
available technology economically achievable, and generally 
would supersede any other permitting requirement or prohibition 
on discharges incidental to the normal operation of a vessel to 
which the Act would apply, under any other provision of law. 
The Secretary would be required to enforce the standards and 
requirements under the Act, and each State would be authorized 
to enforce the standards and requirements under the Act.

Section 5. Uniform national standards and requirements for the 
        regulation of discharges incidental to the normal operation of 
        a vessel.

    This section would provide for the establishment and future 
review and revision of rules regulating discharges incidental 
to the normal operation of a vessel.
    Subsection (a) would provide that the requirements set 
forth in the final rule, Standards for Living Organisms in 
Ship's Ballast Water in U.S. Waters (77 Fed. Reg. 17254 (March 
23, 2012), as corrected at 77 Fed. Reg. 33969 (June 8, 2012)), 
shall be the management requirements for a ballast water 
discharge incidental to the normal operation of a vessel until 
the Secretary revises the ballast water performance standard 
under subsection (b) or adopts a more stringent State standard. 
It would require the Secretary to adopt a more stringent State 
ballast water performance standard if the Secretary makes a 
determination in favor of a State petition under section 10 of 
the Act. It would also require the Secretary, in consultation 
with the Administrator, to issue a final rule governing 
discharges incidental to the normal operation of a vessel other 
than ballast water not later than two years after the date of 
enactment of this Act.
    Subsection (b)(1) would require the Secretary, in 
consultation with the Administrator, to issue a final rule not 
later than January 1, 2022, revising the ballast water 
performance standard under subsection (a) so that a ballast 
water discharge incidental to the normal operation of a vessel 
will contain: less than one organism that is living or has not 
been rendered harmless per 10 cubic meters that is 50 or more 
micrometers in minimum dimension; less than one organism that 
is living or has not been rendered harmless per 10 milliliters 
that is less than 50 micrometers in minimum dimension and more 
than 10 micrometers in minimum dimension; concentrations of 
indicator microbes that are less than one colony-forming unit 
of toxicogenic Vibrio cholera (serotypes O1 and O139) per 100 
milliliters or less than one colony-forming unit of that 
microbe per gram of wet weight of zoological samples, less than 
126 colony forming units of Escherichia coli per 100 
milliliters, and less than 33 colony-forming units of 
intestinal Enterococci per 100 milliliters; and concentrations 
of such additional indicator microbes and of viruses as may be 
specified in regulations issued by the Secretary, in 
consultation with the Administrator and such other Federal 
agencies as the Secretary and the Administrator deem 
appropriate.
    Under subsection (b)(2), issuance of a final rule under 
subsection (b)(1) would be subject to a feasibility review. 
This review would be required to be completed by the Secretary, 
in consultation with the Administrator, not less than two years 
before January 1, 2022, for the purpose of determining the 
feasibility of achieving the required, revised ballast water 
performance standard under this subsection. In conducting the 
feasibility review, the Secretary would be required to consider 
whether revising the ballast water performance standard will 
result in a scientifically demonstrable and substantial 
reduction in the risk of introduction or establishment of 
aquatic nuisance species, taking into account the following 
criteria:
           improvements in the scientific understanding 
        of biological and ecological processes that lead to the 
        introduction or establishment of aquatic nuisance 
        species;
           improvements in ballast water treatment 
        technology, including: the capability of such treatment 
        technology to achieve a revised ballast water 
        performance standard; the effectiveness and reliability 
        of such treatment technology in the shipboard 
        environment; the compatibility of such treatment 
        technology with the design and operation of a vessel by 
        class, type, and size; the commercial availability of 
        such treatment technology; and the safety of such 
        treatment technology;
           improvements in the capabilities to detect, 
        quantify, and assess the viability of aquatic nuisance 
        species at the concentrations under consideration;
           the impact of ballast water treatment 
        technology on water quality; and
           the costs, cost-effectiveness, and impacts 
        of: a revised ballast water performance standard on 
        shipping, trade, and other uses of the aquatic 
        environment; and of maintaining the existing ballast 
        water performance standard, including the potential 
        impacts on water-related infrastructure, recreation, 
        propagation of native fish, shellfish, and wildlife, 
        and other uses of navigable waters.
    If the Secretary, in consultation with the Administrator, 
determined on the basis of the feasibility review and after an 
opportunity for a public hearing that no ballast water 
treatment technology can be certified under section 6 to comply 
with the revised ballast water performance standard under 
paragraph (1), then the Secretary would be directed to require 
the use of the treatment technology that achieves the 
performance levels of the best performing treatment technology 
available. If the Secretary, in consultation with the 
Administrator, determined that requirements for the best 
performing treatment technology available under clause (i) 
cannot be implemented before the implementation deadline 
provided in subsection (b)(3) with respect to a class of 
vessels, then the Secretary would be required to extend the 
implementation deadline for that class of vessels for not more 
than 36 months. If an implementation deadline were extended, 
the Secretary would be required to recommend action to ensure 
compliance with the extended implementation deadline under 
clause (ii).
    If the Secretary, in consultation with the Administrator, 
determined that ballast water treatment technology existed that 
exceeded the revised ballast water performance standard 
prescribed in subsection (b)(1) with respect to a class of 
vessels, then the Secretary would be required to revise the 
ballast water performance standard for that class of vessels to 
incorporate that higher performance standard. If the Secretary, 
in consultation with the Administrator, determined that ballast 
water treatment technology could be implemented before the 
implementation deadline under subsection (b)(3) with respect to 
a class of vessels, then the Secretary would be required to 
accelerate the implementation deadline for that class of 
vessels. If an implementation deadline were accelerated, the 
Secretary would be required to provide not less than 24 months' 
notice before the deadline took effect.
    Under subsection (b)(3), the revised ballast water 
performance standard required by this subsection would apply to 
a vessel beginning on the date of the first drydocking of the 
vessel on or after January 1, 2022, but not later than December 
31, 2024.
    Subsection (b)(4) allows for the Secretary to establish a 
compliance deadline for compliance by a vessel (or a class, 
type, or size of vessel) with a revised ballast water 
performance standard under this subsection. In issuing 
regulations under this subsection, the Secretary would be 
required to establish a process for an owner or operator to 
submit a petition to the Secretary for an extension of a 
compliance deadline with respect to the vessel of the owner or 
operator. An extension may be applied for a period not to 
exceed 18 months from the date of the applicable deadline and 
would be renewable for an additional period not to exceed 18 
months. In issuing a compliance deadline or reviewing a 
petition for extension of a deadline the Secretary would be 
required to consider, with respect to the ability of the owner 
or operator to meet a compliance deadline, the following 
factors:
           whether the treatment technology to be 
        installed is available in sufficient quantities to meet 
        the deadline;
           whether there is sufficient shipyard or 
        other installation facility capacity;
           whether there is sufficient availability of 
        engineering and design resources;
           vessel characteristics, such as engine room 
        size, layout, or a lack of installed piping;
           electric power generating capacity aboard 
        the vessel; and
           safety of the vessel and crew.
    The Secretary would be required to approve or deny a 
petition for an extension of a compliance deadline submitted by 
an owner or operator. If the Secretary did not approve or deny 
a petition referred to in clause (i) on or before the last day 
of the 90-day period beginning on the date of the petition, the 
petition would be deemed approved.
    Subsection (c) of this section would require the Secretary, 
in consultation with the Administrator, to complete a review 
ten years after the issuance of a revised final rule under 
subsection (b) and every ten years thereafter to determine 
whether further revision of the ballast water performance 
standard would result in a scientifically demonstrable and 
substantial reduction in the risk of the introduction or 
establishment of aquatic nuisance species.
    Subsection (c) also would permit the Secretary, in 
consultation with the Administrator, to include in these 
decennial reviews standards for discharges other than ballast 
water which are covered by this section. The Secretary would be 
required to initiate a rulemaking to revise one or more best 
management practices for such discharges after a decennial 
review if the Secretary, in consultation with the 
Administrator, determined that revising one or more of such 
practices would substantially reduce the impacts on navigable 
waters of discharges incidental to the normal operation of a 
vessel other than ballast water. In reviewing a ballast water 
performance standard under this subsection, the Secretary, the 
Administrator, and the heads of other appropriate Federal 
agencies as determined by the Secretary, would be required to 
consider the same review criteria required in the feasibility 
review under subsection (b)(2).
    The Secretary would be required to initiate a rulemaking to 
revise the ballast water performance standard after a decennial 
review if the Secretary, in consultation with the 
Administrator, determined that revising the performance 
standard would result in a scientifically demonstrable and 
substantial reduction in the risk of the introduction or 
establishment of aquatic nuisance species.

Section 6. Treatment technology certification.

    This section would establish the requirements and process 
for the certification of ballast water treatment technology.
    Subsection (a) would provide that, beginning one year after 
the date that the requirements for testing protocols are issued 
under subsection (i) of this section, no manufacturer of a 
ballast water treatment technology shall sell, offer for sale, 
or introduce or deliver for introduction into interstate 
commerce, or import into the United States for sale or resale, 
a ballast water treatment technology for a vessel unless the 
treatment technology has been certified under this section.
    Subsection (b) would provide that, upon application of a 
manufacturer, the Secretary shall evaluate a ballast water 
treatment technology with respect to its effectiveness in 
achieving the current ballast water performance standard when 
installed on a vessel (or a class, type, or size of vessel); 
its compatibility with vessel design and operations; its effect 
on vessel safety; its impact on the environment; its cost-
effectiveness; and any other criteria the Secretary considers 
appropriate. If, after such evaluation, the Secretary 
determined that the treatment technology meets the criteria, 
then the Secretary would be authorized to certify the treatment 
technology for use on a vessel (or a class, type, or size of 
vessel). This subsection would also require the Secretary to 
establish, by regulation, a process to suspend or revoke a 
certification that has been issued.
    Subsection (c) would provide that, in certifying a ballast 
water treatment technology under this section, the Secretary, 
in consultation with the Administrator, would be authorized to 
impose any condition on the subsequent installation, use, or 
maintenance of the technology onboard a vessel as is necessary 
for: the safety of the vessel, the crew of the vessel, and any 
passengers aboard the vessel; the protection of the 
environment; or the effective operation of the technology. 
Failure of a vessel owner or operator to comply with such a 
condition would be considered a violation of this section.
    Subsection (d) would require the Secretary to allow a 
vessel on which a system is installed and operated to meet a 
ballast water performance standard under this Act to continue 
to use that system, notwithstanding any revision of a ballast 
water performance standard occurring after the system is 
installed, until the expiration of the service life of the 
system as determined by the Secretary, so long as the system is 
maintained in proper working condition and maintained and used 
in accordance with the manufacturer's specifications and any 
certification conditions imposed by the Secretary under this 
section.
    Subsection (e) would require that, if the Secretary 
approves a ballast water treatment technology for certification 
under subsection (b), the Secretary issue a certificate of 
type-approval for the treatment technology to the manufacturer 
in such form and manner as the Secretary determines 
appropriate. A certificate of type-approval would be required 
to specify each condition imposed by the Secretary under 
subsection (c). A manufacturer that received a certificate of 
type-approval for the treatment technology would be required to 
provide a copy of the certificate to each owner and operator of 
a vessel on which the technology is installed.
    Subsection (f) would require that an owner or operator who 
receives a copy of a certificate of type-approval retain a copy 
of the certificate onboard the vessel and make it available for 
inspection at all times while the owner or operator is 
utilizing the treatment technology.
    Subsection (g) would bar the Secretary from approving a 
ballast water treatment technology if the technology: (1) uses 
a biocide or generates a biocide that is a pesticide under the 
Federal Insecticide, Fungicide, and Rodenticide Act, unless the 
biocide is registered under that Act or the Secretary, in 
consultation with Administrator, has approved the use of the 
biocide in such treatment technology; or (2) uses or generates 
a biocide, the discharge of which causes or contributes to a 
violation of a water quality standard under section 303 of the 
Federal Water Pollution Control Act.
    Subsection (h) would provide generally that the use of a 
ballast water treatment technology by an owner or operator of a 
vessel shall not satisfy the requirements of this Act unless it 
has been approved by the Secretary under subsection (b). An 
owner or operator would, however, be permitted to use a ballast 
water treatment technology that has not been certified to 
comply with the requirements of this section if the technology 
is being evaluated under the Coast Guard Shipboard Technology 
Evaluation Program, or the technology has been certified by a 
foreign entity and the certification demonstrates performance 
and safety of the treatment technology equivalent to the 
requirements of this section, as determined by the Secretary.
    Subsection (i) would require the Administrator, in 
consultation with the Secretary, to issue requirements not 
later than 180 days after the date of enactment of this Act for 
land-based and shipboard testing protocols or criteria for 
certifying the performance of each ballast water treatment 
technology under this section and certifying laboratories to 
evaluate such treatment technologies.

Section 7. Exemptions.

    Subsection (a) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any standards under this Act apply to: (1) a 
discharge incidental to the normal operation of a vessel if the 
vessel is less than 79 feet in length and engaged in commercial 
service (as defined in section 2101(5) of title 46, United 
States Code); (2) a discharge incidental to the normal 
operation of a vessel if the vessel is a fishing vessel, 
including a fish processing vessel and fish tender vessel (as 
defined in section 2101 of title 46, United States Code); (3) a 
discharge incidental to the normal operation of a vessel if the 
vessel is a recreational vessel (as defined in section 2101(25) 
of title 46, United States Code); (4) the placement, release, 
or discharge of equipment, devices, or other material from a 
vessel for the sole purpose of conducting research on the 
aquatic environment or its natural resources in accordance with 
generally recognized scientific methods, principles, or 
techniques; (5) any discharge into navigable waters from a 
vessel authorized by an on-scene coordinator in accordance with 
part 300 of title 40, Code of Federal Regulations, or part 153 
of title 33, Code of Federal Regulations; (6) any discharge 
into navigable waters from a vessel that is necessary to secure 
the safety of the vessel or human life, or to suppress a fire 
onboard the vessel or at a shoreside facility; or (7) a vessel 
of the armed forces of a foreign nation when engaged in 
noncommercial service.
    Subsection (b) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any ballast water performance standards 
under this Act apply to: (1) a ballast water discharge 
incidental to the normal operation of a vessel determined by 
the Secretary to: operate exclusively within a geographically 
limited area; operate exclusively within 1 Captain of the Port 
Zone established by the Coast Guard unless the Secretary 
determines such discharge poses a substantial risk of 
introduction or establishment of an aquatic nuisance species; 
operate pursuant to a geographic restriction issued as a 
condition under section 3309 of title 46, United States Code 
(or an equivalent restriction issued by the country of 
registration of the vessel); or continuously take on and 
discharge ballast water in a flow-through system that does not 
introduce aquatic nuisance species into navigable species; (2) 
a ballast water discharge incidental to the normal operation of 
a vessel consisting entirely of water suitable for human 
consumption; or (3) a ballast water discharge incidental to the 
normal operation of a vessel in an alternative compliance 
program established pursuant to section 8.
    Subsection (c) would provide that no permit shall be 
required or prohibition enforced under any other provision of 
law for, nor shall any ballast water performance standard apply 
to, a vessel that carries all of its permanent ballast water in 
sealed tanks that are not subject to discharge. Subsection (c) 
also would provide that nothing in this Act shall be 
interpreted to apply to a vessel of the Armed Forces, as that 
term is defined in section 101(a) of title 10, United States 
Code.

Section 8. Alternative compliance program.

    This section would authorize the Secretary, in consultation 
with the Administrator, to promulgate regulations establishing 
one or more alternative compliance programs for a vessel having 
a maximum ballast water capacity of less than eight cubic 
meters and for a vessel that is not less than three years from 
the end of its useful life, as determined by the Secretary. 
Vessels that discharge ballast water into a facility for the 
reception of ballast water that meets standards promulgated by 
the Administrator, in consultation of the Secretary, may have 
an alternate compliance program. Within one year after the date 
of enactment of this Act, the Administrator, in consultation 
with the Secretary, would be required to promulgate standards 
for the reception of ballast water from a vessel into a 
reception facility and the disposal or treatment of the ballast 
water.

Section 9. Judicial review.

    This section would allow an interested person to file a 
petition for review of a final regulation promulgated under 
this Act in the United States Court of Appeals for the District 
of Columbia Circuit. Such a petition would be required to be 
filed not later than 120 days after the date that notice of the 
promulgation appears in the Federal Register. In the case of a 
petition that is based solely on grounds that arise after the 
filing deadline has passed, the petitioner would be permitted 
to file not later than 120 days after the date on which the 
grounds for the petition first arose.

Section 10. Effect on State authority.

    Subsection (a) of this section would provide generally that 
no State or political subdivision thereof may adopt or enforce 
any statute or regulation of the State or political subdivision 
with respect to a discharge incidental to the normal operation 
of a vessel after the date of enactment of this Act.
    Notwithstanding the general prohibition of subsection (a), 
under subsection (b) a State or political subdivision thereof 
would be permitted to enforce a statute or regulation of the 
State or political subdivision with respect to ballast water 
discharges incidental to the normal operation of a vessel that 
specifies a ballast water performance standard that is more 
stringent than the ballast water performance standard under 
section 5(a)(1)(A) and is in effect on the date of enactment of 
this Act if the Secretary, after consultation with the 
Administrator and any other Federal department or agency the 
Secretary considers appropriate, makes a determination that: 
compliance with any performance standard specified in the 
statute or regulation can in fact be achieved and detected; the 
technology and systems necessary to comply with the statute or 
regulation are commercially available; and the statute or 
regulation is consistent with obligations under relevant 
international treaties or agreements to which the United States 
is a party.
    Under subsection (c), the Governor of a State seeking to 
enforce a statute or regulation under subsection (b) would be 
required to submit a petition requesting the Secretary to 
review the statute or regulation. This petition would be 
required to be accompanied by the scientific and technical 
information on which it is based, and be submitted to the 
Secretary not later than 90 days after the date of enactment of 
this Act. The Secretary would be required to make a 
determination on any such petition not later than 90 days after 
the date on which the petition is received.

Section 11. Application with other statutes.

    This section would provide that, notwithstanding any other 
provision of law, this Act shall be the exclusive statutory 
authority for regulation by the Federal Government of 
discharges incidental to the normal operation of a vessel to 
which this Act applies.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
bill as reported would make no change to existing law.

                                  [all]
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